The Demise of Estate Tax Planning

A fascinating story in last Friday’s Wall Street Journalreports what I suppose was an inevitable trend: With the estate tax exemption now up to $5.25 million ($10.5 million for couples) estate tax lawyers are running out of work. So, writes the Journal’s Arden Dale, they are turning to income tax planning for high-net worth clients.

The Tax Policy Center estimates that this year only 3,780 estates will have assets exceeding $5 million and barely 2,000 of those will have $10 million or more. Since it is likely that most people with estates of this size have already done their tax planning, there is just not going to be a lot of new business out there.

Of course, some states have lower thresholds that will keep estate tax attorneys busy. And the wealthy have reasons other than than pure tax savings to do estate planning. But still, what’s a lawyer to do? Some are even urging clients to unwind their trusts.

Dale finds that some have turned to another form of tax planning—finding ways for rich clients to shuffle money to relatives with the aim of reducing income tax liability. As Dale notes, this sort of asset shifting is much simpler than the complex world of trusts.

For instance, a high tax-bracket parent could lend money to a lower-bracket child at today’s very low interest rates. The child could invest the funds and live off capital gains, dividends, and interest but the parent would get the inital loan back. Or, a wealthy client can maximize contributions to retirement plans such as 401(k)s and Roth IRAs since distributions from those accounts are not subject to the new 3.8 percent investment tax that was enacted as part of the 2010 Affordable Care Act.

There is nothing new about wealthy people hiring lawyers to help them reduce their income taxes. For years, they’ve been turning ordinary income into capital gains, deferring income, or shifting income offshore in order to lower their taxes.

But it is interesting that, as the estate tax exemption has steadily increased (under a Democratic president of all things), estate tax lawyers are scrambling for work. With both income tax rates and estate tax exemptions rising it is hardly surprising that enterprising tax lawyers will follow Willie Sutton’s timeless advice and go where the money is.

Posts and Comments are solely the opinion of the author and not that of the Tax Policy Center, Urban Institute, or Brookings Institution.